May 21, 2013

Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U))

Headnote

The relevant facts in this case included the defendant insurer's failure to pay first-party no-fault benefits and the plaintiff's claim for recovery of those benefits. The main issue decided was whether the defendant's requests for verification through an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. The court held that the action was not ripe for summary disposition because the defendant failed to establish that its EUO requests were effective. The court also found that triable issues were raised as to whether the defendant properly followed up on its request for verification. Therefore, the court affirmed the order denying the defendant's motion for summary judgment.

Reported in New York Official Reports at Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U))

Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U)) [*1]

Okslen Acupuncture, P.C. v Lancer Ins. Co.

2013 NY Slip Op 50821(U) [39 Misc 3d 144(A)]

Decided on May 21, 2013

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570228/13.

Okslen Acupuncture, P.C. a/a/o Ricardo Beltran, Plaintiff-Respondent, – –
against
Lancer Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered July 31, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ruben Franco, J.), entered July 31, 2012, affirmed, with $10 costs.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary disposition. The defendant insurer failed to establish, prima facie, that its requests for verification in the form of an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. Defendant’s EUO letters of July 18, 2006 and August 2, 2006 preceded its receipt of plaintiff’s August 10, 2006 claim, and thus did not trigger the tolling of the 30-day period (see Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., _ AD3d _, 2013 NY Slip Op 02390 [2nd Dept 2013]). Moreover, triable issues are raised as to whether, assuming defendant properly mailed its August 26, 2006 EUO request, it made the required follow-up request for verification (see 11 NYCRR 65-3.6[b]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013